321.Section 42 inserts a new section, section 16C, into the 1968 Act. There have been a number of cases in which the Court of Appeal has considered that it was obliged to quash a conviction solely because there has been a development in the common law, or in the interpretation of a statutory provision, since the date of the conviction. Where this would be the only ground for allowing an appeal, an extension of time in which to seek leave to appeal is usually refused if an application is made directly to the Court of Appeal. However, when cases are referred to the Court by the CCRC, this leave is not required and convictions in such cases have been required to be quashed, even though the Court might well have refused leave had leave been required.
322.Subsection (1) of new section 16C lists the provisions under which the CCRC may refer cases to the Court of Appeal, including old cases where the verdict was guilty but insane. Subsections (2) and (3) provide that where the only ground for allowing the appeal is that there has been a development in the law since the date of conviction, the Court may dismiss the appeal if they would have refused an extension of time within which to seek leave to appeal.
323.In asking itself whether it would have refused an application for an extension of time, the Court must assume that the appellant would have been entitled to make such an application. This is necessary to prevent the condition in subsection (3) being met simply because the applicant has previously appealed or applied for leave.
